Chapter 17 - Witnesses

Members or officers of other Houses

As noted in Chapter 2, under Power to conduct inquiries, as a matter of comity between legislatures, and perhaps as a matter of law, the Senate may not summon members of the House of Representatives or of state and territory legislatures. Senate procedures reflect this rule.

If the Senate or one of its committees requires the attendance of a member or officer of the House of Representatives, standing order 178 requires a message to be sent to that House. The message is framed as a request that the House give leave for the member or officer to attend. A similar provision is in the standing orders of the House of Representatives and is referred to in standing order 179, which provides that, on receipt of a message from the House of Representatives, the Senate may authorise the attendance of a senator or Senate officer before a House committee.

The standing orders are interpreted as not preventing the voluntary appearance by invitation of members and officers of one House before the committees of the other. It is quite common for members of the House of Representatives or of state parliaments to appear before Senate committees by invitation, and many have done so. In 1981, a Speaker of the House of Representatives appeared before a Senate committee for the first time, the Select Committee on Parliament's Appropriations and Staffing.[42] On several occasions, House of Representatives ministers have appeared before Senate committees, rather than following the usual practice of being represented by a Senate minister. The Senate Industry, Science and Technology Committee, for example, during its inquiry into the Australian Nuclear Science and Technology Organisation Amendment Bill 1992 in May 1992, heard evidence from the Minister for Science and Technology who was a member of the House of Representatives, the New South Wales Minister for the Environment and a state member. The systematic consideration of bills by Senate committees has resulted in more frequent appearances by state parliamentarians representing their interests in relation to bills affecting Commonwealth-State relationships, such as the Forest Conservation and Development Bill 1991, the Medicare Agreements Bill 1992 and the Native Title Bill 1993. The Community Affairs Legislation Committee on 5 May 1998 heard evidence from most state and territory health ministers simultaneously in relation to the Health Legislation (Health Care Amendments) Bill 1998. The Select Committee on Medicare in 2003 heard several state health ministers. The New South Wales Minister for Justice represented all his state and territory counterparts at the hearing of the Legal and Constitutional Legislation Committee into the Anti-terrorism Bill (No. 2) 2004. State and territory ministers appeared before the Employment, Workplace Relations and Education Legislation Committee in its inquiry into workplace agreements and workplace relations legislation in October and November 2005. Territory Speakers, Chief Minsters and Opposition members appeared before the Legal and Constitutional Affairs Legislation Committee in March 2011 in relation to a bill to remove the Commonwealth's executive veto power over territory legislation. In addition to legislation inquiries, members of other Houses have frequently appeared before committees examining matters of interest to their particular constituency.

This informal procedure of appearance by invitation is used only in cases where members are offering their views on matters of policy or administration under inquiry by Senate committees. The procedure has not been used in cases where the conduct of individuals may be examined, adverse findings may be made against individuals or disputed matters of fact may be under inquiry. For such cases it is considered that the formal process of message and authorisation to appear should be employed. This procedure was invoked in December 1993 when the House requested the appearance of a senator before its Committee of Privileges in relation to an investigation of an alleged unauthorised disclosure of the draft report of a joint committee of which the senator was a member. The Senate authorised the appearance of the senator before the House Committee of Privileges.[43]

The standing orders are also not regarded as preventing the Privileges Committee of one House seeking the written comments of a member of the other House on a matter under inquiry. This has been done by the Senate Privileges Committee on occasions when it has conducted inquiries into unauthorised disclosures of documents of joint committees. The committee has, on these occasions, written to members of the House of Representatives and asked them whether they have any relevant knowledge about the matter under inquiry. To have members of one House attend for examination before a committee of the other, however, would require the formal process of a message. The rationale of this distinction between providing written information and giving oral evidence is that a written inquiry is in the nature of a preliminary step to see whether a full formal hearing is warranted, whereas submitting a member to examination before a committee is a more formal and rigorous inquiry process which also involves a much greater possibility of inquiry into the conduct of the member.[44]

Although the standing orders refer to the House to which a request is made giving permission for its member to appear, it is open to that House to compel the member to appear. As either House may compel its members to appear for the purposes of its own inquiries, it follows that a House can compel its members to appear in an inquiry by another House.

The granting of permission for members of one House to appear before the other House or its committees does not, however, suspend the rule that one House may not inquire into or adjudge the conduct of a member of the other House, other than the conduct of a minister in that capacity. The Senate so declared in granting permission for senators to appear before the House Privileges Committee in an inquiry into the unauthorised disclosure of joint committee documents in 2001.[45]

One of the rare occasions of the use of the procedure under standing order 178 highlights this principle, as well as a probable limitation on the Senate's power to compel evidence. The Select Committee on the Powers, Functions and Operation of the Australian Loan Council was appointed on 3 November 1992 to investigate reports that the state of Victoria had exceeded its borrowing limits with the knowledge of the federal Treasurer. The committee's invitations to appear were met with refusals from several witnesses, including members of state parliaments and the House of Representatives. The committee sought advice from the Clerk of the Senate on whether the Senate could compel members of the House of Representatives and members of state parliaments to appear.

The Clerk's advice was that the Senate did not possess this power. Two bases for the advice were given. The first was that it is a parliamentary rule that a house of parliament does not seek to compel the attendance of members of the other house, as a matter of comity between the houses and of respect for the equality of their powers. This rule is embodied in standing order 178. The Clerk advised that this parliamentary rule should be regarded as extending to the houses of state and territory parliaments, as a matter of comity with those houses and respect for their powers of inquiry.

Secondly, it was advised that, should the matter ever be adjudicated by the courts, the courts could find that as a matter of law the Senate does not possess this power. The courts could arrive at such a finding by reading the parliamentary rule as a rule of law, as courts have done with other parliamentary rules in the past, or, more probably, could find in the Constitution an implied limitation on the powers of the federal Houses in respect of each other and the state houses, on the basis of the doctrine of integrity of state institutions which has been expounded in other judgments. The committee was also advised that the House of Representatives and the state houses could, at the request of the Senate, compel their members to attend before a Senate committee if they considered it was in the public interest to do so.[46]

The committee presented a report to the Senate on 30 September 1993, recommending that the Senate request the House of Representatives and certain state houses to require the attendance of certain of their members before the committee to give evidence.[47] The Senate agreed to a resolution to make the various requests on 5 October.[48] A message from the House of Representatives, declining to accede to the request in respect of the Treasurer, was received on 7 October. Responses from the Victorian Houses were received on 20 and 21 October. The Victorian Houses did not accede to the requests to require their members to appear, but passed resolutions giving the members leave to appear if they thought fit. As these resolutions were passed without debate, it is not clear whether the view was taken that the Houses do not have the power to require their members to appear before a committee of another house, or whether the Senate's requests were declined for other reasons. The New South Wales Legislative Assembly accepted a statement by its Speaker that it did not have the power to compel its members to appear before a Senate committee.

The Select Committee on Unresolved Whistleblower Cases[49] and the Select Committee on the Victorian Casino Inquiry[50] received and accepted similar advice.

In 1995, the Senate instructed to a committee to invite the Prime Minister and another minister to give evidence.[51]

In the course of its inquiry into the regional partnerships program in 2005, the Finance and Public Administration References Committee received evidence about the conduct of members of the House of Representatives, but did not consider such evidence except to the extent that it was relevant to the matter under inquiry by the committee.[52]

The Privileges Committee in 2007 refrained from finding the contempt of improper refusal to provide evidence on the part of a person because a full hearing of the matter would have involved allowing the person to question a member of the House of Representatives.[53]